Supreme Court Keeping Silent In Cases Involving Gay Rights

March 04, 1985|By Glen Elsasser, Chicago Tribune.

WASHINGTON — For 15 years, the gay rights movement has struggled for recognition without the slightest nod from the U.S. Supreme Court. Now, as homosexuals increasingly turn to courts and legislatures to protect their rights, the highest court in the land appears as reluctant as ever to offer direction.

Only last week, after months of speculation that the justices might intervene, the Supreme Court gave its usual silent treatment to an Ohio case that might have changed the status quo. It was one of several cases before the court in which gays could be the chief beneficiaries.

Since 1975, Marjorie Rowland had fought her discharge as a high school teacher for confiding to a school official that she was in love with another woman. The trial judge later ordered a suburban Dayton school to pay damages to Rowland, now an attorney, after a jury found no evidence that her statement affected her job performance or the school`s operation.

Rowland took her case to the high court after a federal appeals court held that the 1st Amendment does not protect employee statements about personal matters outside the range of ``public concern`` and that she therefore was not entitled to reinstatement.

The Supreme Court denied her appeal without explanation, as it has in countless other cases in which personal sexual preference is an issue.

But Justices William Brennan and Thurgood Marshall, two perennial advocates of civil liberties, spoke up for Rowland and told their colleagues it was time for them to seize the initiative. In the process, they defended gay rights and challenged the court to correct the ``disarray`` over sexual preference in the lower courts.

Elaborating on their views in a lengthy dissent, Brennan wrote that homosexuals are a ``significant and insular minority of this country`s population`` and ``particularly powerless to pursue their rights openly in the political arena.`` The reason, he said, was simple: ``Homosexuals have historically been the object of pernicious and sustained hostility.``

The Supreme Court announced at the beginning of its 1984-85 term that it would decide whether the Constitution protects teachers from being fired for publicly supporting homosexual rights. This case from Oklahoma marked the first time that the Burger court had agreed to hear a case in which gay rights was a key issue.

But in oral arguments in January, some justices strongly suggested that their review possibly was premature. Justice William Rehnquist, for example, appeared especially concerned that state courts had never interpreted the disputed Oklahoma law. It made teachers liable to dismissal for speaking out, such as to the legislature or on television, in support of gay rights.

The high court generally avoids controversies that do not pose an immediate threat to individual rights. Despite the lack of evidence that any teacher had lost his or her job because of the law, the National Gay Rights Advocates successfully challenged it in federal court and the state appealed the case to the Supreme Court.

Among the appeals the high court has yet to act on are a Texas A&M University case involving official recognition of a gay student group and a Michigan prison dispute over inmates` rights to attend services of the Metropolitan Community Church, which caters to the religious needs of homosexuals.

At the San Francisco-based National Gay Rights Advocates, legal director Leonard Graff is not optimistic about breakthroughs or progress in the Supreme Court in the near future. He described Advocates as the leading public interest law firm defending the civil rights of gays.

Citing the ``growing conservatism`` of the Supreme Court and the federal judiciary in general, Graff talked about their successes in state courts:

Pennsylvania and New York courts, for example, have invalidated sodomy statutes that in the past were used to harass gays. The California Supreme Court has ruled that employers cannot discriminate on the basis of sexual orientation. Elsewhere, more than 50 municipalities, county and city governments have enacted laws prohibiting discrimination based on sexual orientation.

``Sure, we`ve suffered setbacks in the court, just like all the others in the civil rights movement,`` said Graff, emphasizing gays` ties to efforts to eliminate similar discriminatory barriers based on sex and race. ``Our modern gay rights movement is only 15 years old, but just like all the others we will keep on struggling.``

Looking ahead, Graff said that there are a number of gay issues

``churning around in different courts and they could head to the Supreme Court.`` Regardless of what happens this year, he says, these cases ``will present a wealth of opportunity`` for the court.

While the high court remains on the sidelines, gay activists have succeeded in having legislation introduced in the U.S. House that would

``prohibit discrimination on the basis of affectional or sexual orientation.``

Specifically outlawed in the proposal is discrimination in public facilities, federally funded programs, jobs and the sale and rental of housing. The bill also imposes criminal penalties on people found guilty of committing ``acts of violence or intimidation`` against gays.